Text of Supreme court's Decision ordering Virginia County to Reopen Its Schools

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WASHINGTON, May 25—Following is the text of the SuPreme Court's decision in the Prince Edward County school desegreaation case, Cocheyse J. Griffin, etc., et al., petitioners v.County School Board of Prince Edward County et al.

Mr. Justice Black delivered the opinion of the court.

This litigation began in 1951 when a group of Negro school children living in Prince Edward County, Va., filed a complaint in the United States District Court for the Eastern District of Virginia alleging that they had been denied admission to public schools attended by white children and charging that Virginia laws requiring such school segregation denied complainants equal protec‐tion of the Taws in violation of the 14th Amendment. On May 17 1954, 10 years ago, we held that the Virglnia segre‐gation laws did deny equal protection. Brown v. Board of Education, 347 U.S. 483 (1954).

On May 31; 1955, after re‐argument on the nature of relief, we remanded this, case, along with others heard with it, to the District courts to enter such orders as “necessary and proper to admit (complainants) to public schools on a radically non‐discriminatory basis with all deliberate speed.” Brown v. Board of Education, 349 U.S. 294, 301 (1955).

Efforts to desegregate prince Edward County's schools met with resistance. In 1956, Section 141 of the Virginia Consfitution was amended to authorize the General Assembly and local governing bodies to appropri‐ate funds to assist students to go to public or to nonsectarian private schools, in addition to those owned by the state or by the locality.

The General Assembly met in special session and en‐acted legislation to close any public schools where white and colored children were enrolled together, to cut off state funds to such schools, to pay tuition grants to children in nonsectarian private schools, and to extend state retirement benefits to teach‐ers in newly created private schools. The legislation closing mixed schools and cutting. off state funds was later in‐validated by the Supreme Court of Appeals of Virginia, which held that these laws violated the Virginia Constitution. Harrison v. Day, 200 Va 439, 106 S. E. 2D 636 (1959).

In April, 1959, the General Assembly abandoned “massive resistance” to desegregation and turned instead to what was called a “freedom of choice”: program. The Assembly repealed the rest of the 1956 legislation, as well as a tuition grant law of January 1959, and enacted a new tuition grant program. At the same time the Assembly repealed Virginia's compulsory attendance laws and instead made school at‐tendance a matter of local option.

In June 1959 the United States Court of Appeals for the Fourth Circuit directed the Federal District Court (1) To enjoin discriminatory practices in Prince Edward County schools, (2) To re‐require the county school board to take “immediate steps”: toward admitting students without regard to race to the white high school “in the school term beginning September 1959,” and (3) To require the board to make plans for admissions to elementary schools without regard to race. Allen v. County School Board of Prince Edward County, 266 F, 2D 507 511 (C. A. 4th Cir. 1959).

Having as early as 1956 resolved that they would not operate public schools “wherein white and colored children are taught together,” the supervisors of Prince Edward County refused to levy any school taxes for the 1959‐1960 school year, explaining that they were “confronted with a court decree which requires the admission of white and colored children to all the schools of the county without regard to race or color.”

As a result, the county's public schools did not reopen in the fall of 1959 and have remained closed ever since, although the public schools of every other county in Vir‐ginia have continued to operate under laws governing the state's public school system and to draw funds provided by the state for that purpose. A private group, the Prince Edward School Foundation, was formed to operate private schools for white children in Prince Edward County and, having built its own school plant, has been in operation ever since the closing of the public schools.

An offer to set up private schools for colored children in the county was rejected, the Negroes of Prince Ed‐ward preferring to continue the legal battle for desegregated public schools, and colored children were without formal education from 1959 to 1963, when Federal, state, and county authorities coop‐erated to have classes conducted for Negroes and whites in school buildings owned by the county.

During the 1959‐1960 school year the foundation's schools fof white children were supported entirely by private contributions; but in 1960 the General Assembly adopted a new tuition grant program making every child, regardless of race, eligible for tuition grants of $125 or $150 to attend a nonsectarian private school or a public school outside his locality, and also authorizing localities to provide their own grants. The Prince Edward Board of Su‐' pervisors then passed an ordinance providing tuition grants of $100, so that each child attending the Prince Edward School Foundation's schools received a total of $225 if in elementary school or $250 if in high school.

In the 1960‐1961 session the major source of financial support for the foundation was in the indirect form of these stale and country tuition grants paid to children attending foundation schools. At the same time, the county Board of Supervisors passed an ordinance allowing property tax credits up to 25 per cent for contributibns to any “nonprofit, nonsectarian private school” in the county.

In 1961 petitioners here filed a supplemental com‐plaint, adding new parties and seeking to enjoin the re‐spondents from refusing to operate an efficient system of public free schools in Prince Edward County and to enjoin payment of public funds to help support private schools which excluded stu‐dents on account of‐race. The District Court, finding that “the end result of every action taken by that body (Board of Supervisors) was designed to preserve separation of the races in the schools of Prince Edward County,” enjoined the county from paying tuition grants or giving tax credits so long as public schools remained closed. Allen v. County School Board of Prince Edward County, 198 f. Supp. 497,503 (D. C. E. D. Va., 1961).

At this time the District Court did not pass on whether the public schools of the coun‐ty could be closed, but abstained pending determination by the Virginia counts of whether the Constitution and laws of Virginia. required the public schools to be kept open. Later, however, with‐out waiting for the Virginia courts to decide the question, the District Court held that “the public schools of Prince Edward County may not be closed to avoid the effect of the law of the land as interpreted by the Supreme Court, while the Commonwealth of Virginia permits other public schools to remain open at the expense of the taxpayers.” Allen v. County School Board of Prince Edward County, 207 F. Supp. 349, 355 (D. C. E. D. Va., 1962).

Soon thereafter, a declara‐tory judgment suit was brought by the County Board of Supervisors and the County School Board in Virginia Circuit Court. Having done this, these parties asked the Federal District Court to ab‐stain from further proceedings until the suit in the state courts had run its course, but the District Court declined; It repeated its ord‐er that Prince Edward's public schools might not be closed to avoid desegregation while the other public schools in Virginia remained open. The Court of Appeals reversed, Judge Bell dissenting, holding that the District Court should have abstained to await state court determination of the validity of the tuition giants and the tax credits, as well as the validity of the closing of the public schools. Griffin v. Board of Supervisors of Prince Edward County, 322 F. 2D 322 (C. A. 4th Cir. 1963). We granted certiorari, stating:

“In view of the long delay in the case since our decision in the Brown case and the importance of the questions presented, we grant certiorari and put the case down for argument March 30, 1964, on the merits, as we have done in other comparable situations without waiting for final ac‐tion by the Court of Appeals.” 375 U.S. 391, 392.

For reasons to be stated, we agree with the District Court that, under the cir‐cumstances here, closing the Prince Edward County schools while public schools in all the other counties of Virginia were being maintained denied the petitioners and the class of Negro students they repre‐sent the equal protection of the laws guaranteed by the 14th Amendment.

1

Before reaching the sub‐stantial questions presented, we shall note several procedural matters urged by re‐spondents in a motion to .dismiss the supplemental amended complaint filed July. 7, 1961— 10 years after this action was instituted. Had Me motion to dismiss been granted on any of the grounds assigned, the result would have been one more of what Judge Bell, dissenting in the Court Of Appeals, referred to as. — the inordinate delays which have already occurred. in this protracted litigaticin." 322 F. 2D, at 344.. We shall take up separately the groundS assigned for dismissal.

(A) This contended that the amended supplemental complaint presented - a new. and different , cause Of action from that presented in the original complaint. The supplemental pleading did add new parties and rely in good part on transactions, occurrences, and events which had happened since the =•ction had begun. But these new transactions were alleged to have occurred as a part of continued, persistent efforts to circumvent our 1955 holding that Prince Ed*ard County could not. continue to operate, maintain, and support a sys‐tem• of schools in which students were segregated on a racial basis. The original complaint ,had challenged racial segregation in , schools which were adpittedly public. The new confplaint charged that Prince Edward County Was still using its funds, along' with .state funds, to assist private schools while at the same time closing down the county's public schools, all to avoid the desegregation ordered in the Brawn cases.

The amended complaint thus was not a new cause of action but merely part of the same old cause of action arising out of the continued desire of colored :Students in Prinée _ Edward - 6itnity to have the same optiortunity for state‐supported education afforded to white people, a desire thwarted before 1959 by segregation in the public schools and after 1959 by a combination of closed' public schools and state and county grants to white children at the foundation's private schools. Rule 15 (D) of the Federal Rides of Criminal procedure plainly, permits ‐supplemental amendments to cover events happening after suit, and it follows, of course, that persons participating in these new events may be added if necessary.

Such amendments are well within the basic aim of the rules to make pleadings a means to achieve an orderly and fair administration of justice.

(B) When this action was originally brought in 1951, it broadlY charged that the Constitution and laws, of Virginia provided a state system of public schools which unconstitutionally segregated school children on the basis of color. This challenge was heard by a District Court of three judges as reauired by 28 U.S. S.M.C. Section 2281. When in Brown we held the school segregation laws invalid as a denial of equal protection of the laws under the 14th Amendment ana remanded for the District Court to fashion a decree requiring abandonment of segregation "with all deliberate speed," the three‐judge court ceasbd to function, and a single District judge took over.

Respondents contend that the single judge erroneously passed on the issues raised by the supplemental' complaint and that we should now delay the case still further by vacating his judgment along with that of the Court of Appeals and remainding to the District Court for a completely new, trial before three judges. We reject the contention. In Rorick v. Board of Commissioners of Everglades Drainage Dist. 307 U.S. 208, 212 (1959), we said, in interpreting the three‐judge statute (then 28 U.S.C. section 226):

"Despite the generality of the lanage of that section, it is now settled doctrine that only a suit involving "a statute of general application" and not one affecting, a 'particular municipality or district' can invoke section 266."

While holding as to the constitutional duty of the supervisors and other officials of Prince Edward County may have repercussions over the. state and may require the District Court's orders to run to parties outside the county, it is nevertheless true that what is attacked in this suit is not something which the state has commanded Prince Edward to do — close its public schools and give grant.s. to children in private schools — but rather something which' the county with state acquiescence and cooperation has undertaken to do on its own volition, a decision not binding on any other county in Virginia. Even though actions of the state are involved, the case, as it comes to us, con‐cerns not a statewide system but rather a situation unique to Prince Edward County. We hold that the single District judge did not err in adjudicating this present controversy.

(C) It is contended that the case is an action against the state, is forbidden by the 11th Amendment, and therefore should be dismissed. The complaint, however, charged that state and county officials are depriving petitioners of rights guaranteed by the 14th Amendment. It has been settled law since ex parte Young, 209 U.S. 123 (1908), that suits against state and county officials to enjoin them from invading constitutional rights are not forbidden by the 11th Amendment.

(D) It, is. argued that the District Court should have ab‐stained from passing on the issues raised here in order to await a determination by the Supreme Court of Appeals of Virginia as to whether the conduct complained of violated the Constitution or laws of Virginia. The Couk of Appeals So. Hel, 322 F. 2D 332, and this court has, in cases deemed appropriate, directed that such a course be fol‐lowed,e.g., Railroad Comm’n of Texas v. Pullman Co., 312 U.S. 496 (1941); Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25 (1959).

But we agree with the dis‐senting judge in the Court of Appeals, 322 F. 2D at.344345, that this is not a case for abstention. In the first pleace the supreme Court of Virginia has already passed upon the state law with re‐spect to all the issues, here. County School Board of Prince Edward County v. Griffin, 204.Va. 650 133 S.E. 2D 565 (1936).

But quite independently of this, we hold that the issues here imperatively call for decision now. The case has been delayed since 1951 by resistance at the state and county level, by legislation, and by lawsuits. The original plaintiffs have doubtless all passed High school age. There has been entirely too much deliberation and not enough speed in enforcing the constitutional rights which we held in Brown vs. Board of Education, Supra, had been denied Prince Ed‐ward County Negro children. We accordingly reversed the Court of Appeals judgment remanding the case to the District Court to abstain, and we proceed to the merits. Prince Edward County vs. Griffin, 204 vs., 650, 133 S.E.

2

In County School Board of 2d 565 (1963), The Supreme Court of Appeals, of Virginia upheld as valid under state law the closing of the Prince Edward County public schools, the state and coun‐ty tuition grants for children who attend private schools, and the county's tax concessions for those who make contributions to private schools. The same opinion also held that each county had “an option to operate or not to operate public schools.” 204 Va., at 671, 133 S.E. 2d, at 580.

We accept this case asa definitive and authoritative holding of Virginia law, bind‐ing on us, but we cannot accept the Virginia court's further holding, based largely on the Court of Appeals opinion in this case, 322 F. 2D 332, that closing the coun‐ty's public schools under the circumstances of the case did not deny the colored school children of Prince Edward County equal protection of the laws guaranteed by the Federal Constitution.

Since 1959, all Virginia counties have had the bene‐fits of public schools but one: Prince Edward.

However, there is no rule that counties as counties, must be treated alike; the equal‐protection clause relates to equal protection of the laws “between persons as such rather than between areas,” Salsburg v. Maryland, 346 U.S.545, 551 (1954).

Indeed, showing that different persons a. e treated differently is not enough, without more, to show a denial of equal protection. Kotch v. Board of River Port Pilot Comm’rs, 330 U.S. 552, 556 (1947). It is the circumstances of each case which govern. Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 539‐540 (1942).

Virginia law, as here ap‐plied, unquestionably treats the schoolchildren of Prince Edward differently from the way it treats the schoolchil‐ dren of all other Virginia counties. Prince Edward chil‐dren Must go to a private school or none at all; all Virginia children can go to public schools. '

Closing Prince Edward's schools bears more heavily on Negro children in Prince Edward County since white children there have accredited private. schools which they can attend, while colored chil‐dren until very recently have had no available private schools, and even the school they. now attend is a temporary expedient. Apart from this expedient, the result is that Prince Edward County schoolchildren, if they go to school in their own county, must go to racially segre‐gated schools which, although designated as private, are beneficiaries of county and state support.

A state, of course, has a wide discretion in deciding whether lawsshall operate statewide or shall operate only in certain counties, the Legislature “having in mind the needs and desires of each.” Salsburg v. Maryland, supra, 346 U.S., at 552. A state may wish to suggest, as Maryland did in Salsburg, that there are reasons why one county ought not to be treated like another. 346 U.S., at 553‐554.

But the record in the pres‐ent case could not be clearer that Prince Edward's public schools were closed and pri‐vate schools operated in their place with state and county assistance, for one reason, and one reason only: To ensure, through measures taken by the county and the state, that white and colored children in Prince Edward County would not, under any cir‐cumstances, go to the same school. Whatever nonracial grounds might support a state's allowing a county to abandon public schools, the object must be a constitutional one, and grounds of race and opposition to desegregation do not qualify as consti‐tutional.

In Hall v. St. Helena Par‐ ish School Board, 197 F. Supp. 649 (D. C. E. D. La. 1961), a three‐judge District Court invalidated a Louisiana statute which provided “a means by which public schools under desegregation orders may be Changed to ‘private’ schools operated in the same way, in the same buildings, with. the same furnishings; with the same money, and under the same supervision as the public schools.” id., AT 651.

In addition, that statute also provided that where the public schools were “closed,” the school board was “:charged with responsibility for furnishing free lunches, transporta‐ tion, and grants‐in‐aid to the children attending the “pri‐vate schools,” bid. We affirmed the District Court's judgment invandating the Louisiana statute as a denial of equal‐ protection. 368 U.S. 515 (1962). While the Louisiana plan and the Virginia plan worked in different ways, it is plain that both were created to accomplish the same thing: perpetration of racial segregation by closing public schools and op‐erating only segregated schools supported directly or indireetly by state or county funds. See Cooper v. Aaron, 358 U.S. 1, 17 (1958).

Either plan works to deny colored students equal pro‐tection of the laws. Accordingly, we agree with the District Court that closing the Prince Edward schools and meanwhile contributing to the support of the private segregated white schools that took their place denied peti‐tioners the equal protection of the laws.

3

We come now to the question of the kind of decree necessary and appropriate to put an end to the racial discrimination practiced against these petitioners under authority of the Virginia laws. That relief needs to be quick and effective. The party, defendants are the. Board of Supervisors, school board, treasurer, and division superintendent of schools of Prince Edward County, and the State Board of Education and the state superintendent of education.

All of these have duties which relate directly or in‐directly to the financing, supervision, or operation of the schools in Prince Edward county. The Board of Supervisors has the special responsibility to levy local taxes to operate public schools or to aid children attending the private schools now functioning there for white children.

The District Court enjoined the county officials from pay‐ing county tuition grants or giving tax exemptions and from processing applications for state tuition grants so long as the county's public schools remained closed. We have no doubt of the power of the court, to give this re‐lief to enforce the discontinuance of the county's racially discriminatory prac‐tices. It has long been established that notions against a county can be maintained in United States courts in order to vindicate zederally guaranteed rights. E. G., Lincoln County v. Luning, 133 U.S. 529 (1890); Kennecott Copper Corp. v. State Tax Comm’n, 327 U.S. 573, 579 (1946).

The injunction against pay‐ing tuition grants and giving tax credits while public schools remain closed is ap‐propriate and necessary since those grants and tax credits have been essential parts of the county's program, successful thus far, to deprive petitioners of the same advan tages of a public school educa tion enjoyed by children in every other part of Virginia. For the same reasons the Dis tnct Court may, if necessary to prevent further racial dis crimination, require the supervisors to exercise the power that is theirs to levy taxes to raise funds adequate to re open, operate, and maintain without racial discrimination a public school system in Prince Edward County like that operated in other coun ties in Virginia.

The District Court held that “the public schools of Prince Edward County may not be closed to avoid the ef‐ fect of the law of the land as interpreted by the Supreme Court, while the Commonwealth of Virginia permits other public schools to re‐main open at the expense of the taxpayers.” Allen V.cou ty School Board of Prince Edward County, 207 F. Supp 349, 355 (D. C. E. D. Va 1962).

At the same time the court gave notice that it would later consider an order to accomplish this purpose if the public schools were not reopened by Sept. 7, 1962 That day has long passed and the schools are still closed.

On remand, therefore, the court may find it necessary to consider further such as order. An Order of tnis kind is within the court's power if required to assure these pettioners that their consti tutional rights will no longer be denic them. The time for mere “deliberate speed” has run out, and that phrase cano no longer justify denying these Prince Edward County schoolchildren their constitutional rights to an education equal to that afforded by the public schools in the other parts of Virginia.

The judgment of the Court of Appeals is reversed, the judgment of the District s Court is affirmed, and the cause is remanded to the Dis‐trict Court with directions to enter a decree which will guarantee that these peti‐ tioners will get the kind of education that is given to the state's public schools. And, if it becomes necessary to add new parties to complish this end, the District Court is free to do so.

It is soordered.

Mr. Justice Clark and Justice Harlan disagree with the holding that the Federal courts are empowered to or der the reopening of the pull‐lic schools in Prince Edward County, but otherwise join in the Court's opinion.

A version of this archives appears in print on May 26, 1964, on Page 26 of the New York edition with the headline: Text of Supreme court's Decision ordering Virginia County to Reopen Its Schools. Order Reprints|Today's Paper|Subscribe